10-year visa because that is State’s internal policy. But
that policy does not apply to E-2 visas. Consular Officers
can and do approve visas for less than the full 5-year
E-2 reciprocity period when they harbor doubts as to the
commitment of the applicant or the progression of the
business plan.
Practitioners should therefore not assume that their clients
will always receive a full validity visa, regardless of the
nationality, reciprocity must be considered, and advice
should be tailored accordingly.
THE E-2 IS NOT A DUAL-INTENT VISA
– BEWARE §214(B)
Investors should be reminded of the dangers of denial
under INA §214(b) - the provision that requires a non-
immigrant visa applicant to prove to the Consular Officer
that he or she is not an intending immigrant.
§214(b) has not been much of a problem for E-2 applicants,
because 9 FAM 402.9-4(C) says that an “alien’s expression
of an unequivocal intent to depart the United States at the
end of his/her authorized stay” is enough to overcome the
burden of proof. However, the FAM does not go so far as to
instruct the Consular Officer to accept dual intent. In fact, 9
FAM 402.9-4(C)’s closing sentence says, “An applicant who
is the beneficiary of an immigrant visa petition will need to
satisfy you that his/her intent is to depart the United States
at the end of his/her authorized stay, and not stay in the
United States to adjust status or otherwise remain in the
United States.”
E-2 visa. The E-2 visa is probably best for those investors
that have a legitimate interest in running their own business
in the US – the direct investment type investor. The typical
Regional Center investor looking first for a vehicle to
emigrate to the United States through a passive investment
is probably not the best candidate for E-2, and practitioners
should take care not to unduly encourage them. Torpor in
the EB-5 world is no reason for bad E-2 advice.
Stephen P. Pazan ,
esquire, is an
attorney working as a consultant to Baker
Tilly Capital, LLC on EB-5 source of funds
and other issues. Pazan was a consular
officer with the U.S. Department of State in
Colombia, Kiev and Warsaw, and an EB-5
adjudicator for the USCIS before leaving
government in March 2018. He is also
special counsel to the New York law firm
Barket Epstein Kearon Aldea & LoTurco, LLP.
Sources:
1
See info, Challenging the Doctrine of Consular Non-Reviewability in Immigration Cases, Donald S.
Dobkin, November 2009, https://law.yale.edu/system/files/area/conference/ilroundtable/ILR13_
DIDonaldDobkinChallengingtheDoctrine.pdf
“[W]ill need to satisfy you…” is not an objective standard.
As stated earlier, Consular Officers have a great deal of
discretion. While there are limited rights of supervisory
review, the circumstances where Consular Officers are
directed to reverse their decisions are rare. In fact, the
FAM is predisposed against it, and imposes administrative
burdens on supervisors who might wish to do so.
If prospective EB-5 applicants are directed in increasing
numbers to the E-2, it is likely that Consular Officers will
notice it and become increasingly demanding. The intent
to depart required for in E-2, or even a B1/B2 visa, is
inconsistent with the pendency of an I-526, but the B1/B2
application is more likely to get the benefit of doubt. After
all, the E2/I-526 combination is more-or-less an affirmative
statement of intent to reside in the United States.
A Consular Officer’s determination as to immigrant intent is
never appealable, and once a §214(b) finding is lodged in
the Consular Consolidated Database (CCD), it can become
problematic. A §214(b) denial can result in all kinds of
problems, such as rescission of dependents’ F-1 student
visas or the denial of B1/B2 visas.
1
To conclude, migration professionals should properly
advise investors regarding the challenges posed by the
E-2 process. The considerations discussed here are a
recommendation that the industry slow down regarding the
106 EB5 INVESTORS M AGAZINE
Rodrigo and his law firm have vast experience representing
EB-5 investors with the preparation and submission of
permanent resident applications. We work with investors
applying either through direct EB-5 investments as well as
through Regional Center applications. Rodrigo and his team
have vast experience with other types of U.S. non-immigrant
and immigrant visa applications.
www.rdasilvalaw.com
RODRIGO AND HIS TEAM ARE FLUENT IN ENGLISH,
SPANISTH, AND PORTUGUESE.
TEL: (305) 615 1434 FAX: (305) 615 1435
EMAIL: RODRIGO @ RDASILVALAW.COM
777 41ST STREET, SUITE 402
MIAMI BEACH, FLORIDA 33140